[Federal Register Volume 72, Number 74 (Wednesday, April 18, 2007)]
[Proposed Rules]
[Pages 19424-19435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7348]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2006-0459; FRL-8301-9]


Determination of Attainment, Approval and Promulgation of 
Implementation Plans and Designation of Areas for Air Quality Planning 
Purposes; Indiana; Redesignation of the LaPorte County 8-Hour 
Nonattainment Area to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On May 30, 2006, the Indiana Department of Environmental 
Management (IDEM) submitted a request for EPA approval of a 
redesignation of LaPorte County to attainment of the 8-hour ozone 
National Ambient Air Quality Standard (NAAQS) and of an ozone 
maintenance plan for LaPorte County as a revision to the Indiana State 
Implementation Plan (SIP). EPA is proposing to approve Indiana's 
request and maintenance plan SIP revision. EPA is also proposing to 
approve the Volatile Organic Compounds (VOC) and Nitrogen Oxides 
(NO<INF>X</INF>) Motor Vehicle Emission Budgets (MVEBs) for LaPorte 
County, as supported by the ozone maintenance plan for this County, for 
purposes of conformity determinations.

DATES: Comments must be received on or before May 18, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0459, by one of the following methods:
    <bullet> www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#1f727070717a6631757077715f7a6f7e31787069"><span class="__cf_email__" data-cfemail="93fefcfcfdf6eabdf9fcfbfdd3f6e3f2bdf4fce5">[email protected]</span></a>.
    <bullet> Fax: (312) 886-5824.
    <bullet> Mail: John M. Mooney, Chief, Criteria Pollutant Section, 
Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 
West Jackson Boulevard, Chicago, Illinois 60604.
    <bullet> Hand Delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois. Such deliveries 
are only accepted during the Regional Office's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information. The Regional Office's official hours of operation 
are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2006-0459. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI, or otherwise protected, through www.regulations.gov or e-mail. 
The www.regulations.gov website is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters and any form of 
encryption, and should be free of any defects or viruses
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hardcopy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hardcopy at the Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. 
It is recommended that you telephone Edward Doty, Environmental 
Scientist, at (312) 886-6057, before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist, 
Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 886-6057, <a href="/cdn-cgi/l/email-protection#1a7e756e63347f7e6d7b687e5a7f6a7b347d756c"><span class="__cf_email__" data-cfemail="c0a4afb4b9eea5a4b7a1b2a480a5b0a1eea7afb6">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA. This supplementary 
information section is arranged as follows:

I. What Action Is EPA Proposing To Take?
II. What Is the Background for This Action?
III. What Are the Criteria for Redesignation to Attainment?
IV. What Are EPA's Analyses of the State's Requests and What Are the 
Bases for EPA's Proposed Action?
V. Has Indiana Adopted Acceptable Motor Vehicle Emissions Budgets 
for the End of the 10-Year Maintenance Plan Which Can Be Used To 
Support Conformity Determinations?
VI. What Is the Effect of EPA's Proposed Action?
VII. Statutory and Executive Order Reviews

I. What Action Is EPA Proposing To Take?

    We are proposing to take several related actions for LaPorte 
County. First, we are proposing to determine that LaPorte County has 
attained the 8-hour ozone NAAQS based on air quality for the period of 
2003 through 2005. Second, we are proposing to approve Indiana's ozone 
maintenance plan for LaPorte County as a requested revision to the 
Indiana SIP. The maintenance plan is designed to keep LaPorte County in 
attainment of the 8-hour ozone standard for the next 14 years, through 
2020. As supported by and consistent with the ozone maintenance plan, 
we are also proposing to approve the 2020 VOC and NO<INF>X</INF> MVEBs 
for LaPorte County for conformity purposes. Finally, we are proposing 
to approve the request from the State of Indiana to change the 
designation of LaPorte County from nonattainment to attainment of the 
8-hour ozone NAAQS. We have determined that the State and LaPorte 
County have met the

[[Page 19425]]

requirements for redesignation to attainment under section 107(d)(3)(E) 
of the Clean Air Act (CAA).

II. What Is the Background for This Action?

A. General Background Information

    EPA has determined that ground-level ozone is detrimental to human 
health. On July 18, 1997, EPA promulgated an 8-hour ozone NAAQS of 0.08 
parts per million parts of air (0.08 ppm) (80 parts per billion (ppb)) 
(62 FR 38856).\1\ This 8-hour ozone standard replaced a prior 1-hour 
ozone NAAQS, which had been promulgated on February 8, 1979 (44 FR 
8202), and which EPA revoked on June 15, 2005 (69 FR 23858).
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    \1\ This standard is violated in an area when any ozone monitor 
in the area (or in its impacted downwind environs) records 8-hour 
ozone concentrations with an average of the annual fourth-highest 
daily maximum 8-hour ozone concentrations over a three-year period 
equaling or exceeding 85 ppb. See 40 CFR 50.10.
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    Ground-level ozone is not emitted directly by sources. Rather, 
emitted NO<INF>X</INF> and VOC react in the presence of sunlight to 
form ground-level ozone along with other secondary compounds. 
NO<INF>X</INF> and VOC are referred to as ``ozone precursors.'' Control 
of ground-level ozone concentrations is achieved through controlling 
VOC and NO<INF>X</INF> emissions.
    Section 107 of the CAA required EPA to designate as nonattainment 
any area that violates the 8-hour ozone NAAQS. The Federal Register 
notice promulgating the 8-hour ozone designations and classifications 
was published on April 30, 2004 (69 FR 23857).
    The CAA contains two sets of provisions--subpart 1 and subpart 2--
that address planning and emission control requirements for 
nonattainment areas. Both are found in title I, part D of the CAA. 
Subpart 1 contains general, less prescriptive requirements for all 
nonattainment areas for any pollutant governed by a NAAQS. Subpart 2 
contains more specific requirements for certain ozone nonattainment 
areas, and applies to ozone nonattainment areas classified under 
section 181 of the CAA.
    In the April 30, 2004 designation rulemaking, EPA divided 8-hour 
ozone nonattainment areas into the categories of subpart 1 
nonattainment (``basic'' nonattainment) and subpart 2 nonattainment 
(``classified'' nonattainment). EPA based this division on the areas 8-
hour ozone design values (i.e., on the three-year averages of the 
annual fourth-highest daily maximum 8-hour ozone concentrations at the 
worst-case monitoring sites in the areas) and on their 1-hour ozone 
design values (i.e., on the fourth-highest daily maximum 1-hour ozone 
concentrations over the three-year period at the worst-case monitoring 
sites in the areas).\2\ EPA classified 8-hour ozone nonattainment areas 
with 1-hour ozone design values equaling or exceeding 121 ppb as 
subpart 2, classified nonattainment areas. EPA classified all other 8-
hour nonattainment areas as subpart 1, basic nonattainment areas. The 
basis for area classification was defined in a separate April 30, 2004, 
final rule (the Phase 1 implementation rule) (69 FR 23951).
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    \2\ The 8-hour ozone design value and the 1-hour ozone design 
value for each area were not necessarily recorded at the same 
monitoring site. The worst-case monitoring site for each ozone 
concentration averaging time was considered for each area.
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    Emission control requirements for classified nonattainment areas 
are linked to area classifications. Areas with more serious ozone 
pollution problems are subject to more prescribed requirements and 
later attainment dates. The prescribed emission control requirements 
are designed to bring areas into attainment by their specified 
attainment dates.
    In the April 30, 2004, ozone designation/classification rulemaking, 
EPA designated LaPorte County as a subpart 2 moderate nonattainment 
area for the 8-hour ozone NAAQS. This designation was based on ozone 
data collected during the 2001-2003 period. On September 22, 2004 (69 
FR 56697), EPA revised the designation of LaPorte County to subpart 2 
marginal nonattainment.
    On May 30, 2006, the State of Indiana requested redesignation of 
LaPorte County to attainment of the 8-hour ozone NAAQS based on ozone 
data collected in LaPorte County during the 2003-2005 period. On August 
24, 2006, IDEM submitted a summary of an ozone data review and 
supplementary ozone data to address a shortfall in the data supporting 
the ozone redesignation request.

B. What Is the Impact of the December 22, 2006 United States Court of 
Appeals Decision Regarding EPA's Phase 1 Implementation Rule?

    On December 22, 2006, the United States Court of Appeals for the 
District of Columbia Circuit (the Court) vacated EPA's Phase 1 
implementation rule (Phase 1 Rule) for the 8-hour ozone standard (69 FR 
23951, April 30, 2004). South Coast Air Quality Management Dist. v. 
EPA, 472 F.3d 882 (D.C. Cir. 2006). The Court held that certain 
provisions of EPA's Phase 1 Rule were inconsistent with the 
requirements of the CAA. The Court rejected EPA's reasons for 
implementing the 8-hour ozone standard in nonattainment areas under 
subpart 1 in lieu of subpart 2 of Title I, part D of the CAA. The Court 
also held that EPA improperly failed to retain four measures required 
for 1-hour ozone nonattainment areas under the anti-backsliding 
provisions of the regulations: (1) Nonattainment area New Source Review 
(NSR) requirements based on an area's 1-hour nonattainment 
classification; (2) section 185 penalty fees for 1-hour severe or 
extreme ozone nonattainment areas; (3) measures to be implemented 
pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the 
contingency of an area not making reasonable further progress toward 
attainment of the 1-hour ozone NAAQS, or failing to attain that NAAQS; 
and, (4) conformity requirements for certain types of Federal actions. 
The Court upheld EPA's authority to revoke the 1-hour ozone standard 
provided that there were adequate anti-backsliding provisions.
    This section sets forth EPA's views on the potential effect of the 
Court's ruling on this redesignation action. For the reasons set forth 
below, EPA does not believe that the Court's ruling alters any 
requirements relevant to this redesignation action so as to preclude 
redesignation, and does not prevent EPA from finalizing this 
redesignation. EPA believes that the Court's decision, as it currently 
stands or as it may be modified based on any petition for rehearing 
that has been filed, imposes no impediment to moving forward with 
redesignation of this area to attainment, because in either 
circumstance redesignation is appropriate under the relevant 
redesignation provisions of the CAA and longstanding policies regarding 
redesignation requests.
    With respect to the 8-hour ozone standard, LaPorte County is 
classified as moderate nonattainment under subpart 2 of the CAA. We do 
not believe that any part of the Court's opinion would require that 
this subpart 2 classification be changed upon remand to EPA. However, 
even assuming for present purposes that LaPorte County would become 
subject to a different classification under a classification scheme 
created in a future rule in response to the Court's decision, this 
would not prevent EPA from finalizing a redesignation for this area. 
For the reasons set forth below, we believe that any additional 
requirements that might apply based on that different classification 
would not be applicable for purposes of evaluating the redesignation 
request.
    This belief is based on: (1) EPA's longstanding policy of 
evaluating

[[Page 19426]]

redesignation requests in accordance with only the requirements due at 
the time the complete redesignation request was submitted; and, (2) 
consideration of the inequity of retroactively applying any 
requirements that might be applied in the future.
    First, at the time the complete redesignation request was submitted 
(May 30, 2006), LaPorte County was classified under subpart 2 and was 
required to meet the subpart 2 requirements. Under EPA's longstanding 
interpretation of section 107(d)(3)(E) of the CAA, to qualify for 
redesignation, states requesting redesignation to attainment must meet 
only the relevant SIP requirements that came due prior to the submittal 
of complete redesignation requests. September 4, 1992 Calcagni 
memorandum (``Procedures for Processing Requests to Redesignate Areas 
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division). See also: September 17, 1993 Shapiro memorandum 
(``State Implementation Plan (SIP) Requirements for Areas Submitting 
Requests for Redesignation to Attainment of the Ozone and Carbon 
Monoxide (CO) National Ambient Air Quality Standard (NAAQS) on or after 
November 15, 1992,'' Memorandum from Michael H. Shapiro, Acting 
Assistant Administrator, Air and Radiation Division); 60 FR 12459, 
12465-12466 (March 7, 1995) (redesignation of Detroit-Ann Arbor); 
Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004), which upheld this 
interpretation; and, 68 FR 25418, 25424, 25427 (May 12, 2003) 
(redesignation of St. Louis). At the time the redesignation request for 
LaPorte County was submitted, the area was not classified under subpart 
1 and no subpart 1 requirements were applicable for purposes of 
redesignation.
    Second, it would be inequitable to retroactively apply any new SIP 
requirements that were not applicable at the time the complete 
redesignation request was submitted, but which might later become 
applicable. The D.C. Circuit has recognized the inequity of such 
retroactive rulemaking. See Sierra Club v. Whitman, 285 F.3d 63 (D.C. 
Cir. 2002), in which the D.C. Circuit upheld a District Court's ruling 
refusing to make retroactive an EPA determination of nonattainment that 
was past the statutory attainment deadline. Such a determination would 
have resulted in the imposition of additional requirements on the area. 
The Court stated: ``Although EPA failed to make the nonattainment 
determination within the statutory time frame, Sierra Club's proposed 
solution only makes the situation worse. Retroactive relief would 
likely impose large costs on the States, which would face fines and 
suits for not implementing air pollution plans in 1997, even though 
they were not on notice at the time.'' Id. at 68. Similarly, here it 
would be unfair to penalize the area by applying to it for purposes of 
redesignation additional requirements under subpart 1 that were not in 
effect at the time Indiana submitted its redesignation request, but 
that might apply in the future.
    Because LaPorte County was designated as Unclassifiable/Attainment 
under the 1-hour ozone standard and was never designated nonattainment 
for the 1-hour ozone standard, there are no outstanding 1-hour 
nonattainment area requirements that LaPorte County would be required 
to meet. Thus, we find that the Court's ruling does not result in any 
additional 1-hour requirements for purposes of redesignation of LaPorte 
County.

III. What Are the Criteria for Redesignation to Attainment?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA 
authorizes redesignation provided that: (1) The Administrator 
determines that the area has attained the applicable NAAQS; (2) the 
Administrator has fully approved an applicable state implementation 
plan for the area under section 110(k) of the CAA; (3) the 
Administrator determines that the improvement in air quality is due to 
permanent and enforceable emission reductions resulting from 
implementation of the applicable SIP, Federal air pollution control 
regulations, and other permanent and enforceable emission reductions; 
(4) the Administrator has fully approved a maintenance plan for the 
area meeting the requirements of section 175A of the CAA; and, (5) the 
state containing the area has met all requirements applicable to the 
area under section 110 and part D of the CAA.
    EPA provided guidance on redesignations in the General Preamble for 
the Implementation of Title I of the CAA Amendments of 1990 on April 
16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 
1992 (57 FR 18070). The two main policy guidelines affecting the review 
of ozone redesignation requests are the following: ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992 (September 4, 1992 Calcagni memorandum); and, 
``Reasonable Further Progress, Attainment Demonstration, and Related 
Requirements for Ozone Nonattainment Areas Meeting the Ozone National 
Ambient Air Quality Standard,'' Memorandum from John S. Seitz, 
Director, Office of Air Quality Planning and Standards, May 10, 1995. 
For additional policy guidelines used in the review of ozone 
redesignation requests, see our proposed rule for the redesignation of 
the Evansville, Indiana ozone nonattainment area at 70 FR 53606 
(September 9, 2005).

IV. What Are EPA's Analyses of the State's Requests and What Are the 
Bases for EPA's Proposed Action?

    EPA is proposing to: (1) Determine that LaPorte County has attained 
the 8-hour ozone standard; (2) approve the ozone maintenance plan for 
this County and the VOC and NO<INF>X</INF> MVEBs supported by this 
maintenance plan; and, (3) approve the redesignation of this County to 
attainment of the 8-hour ozone NAAQS. The bases for our proposed 
determination and approvals follow.

1. LaPorte County Has Attained the 8-Hour Ozone NAAQS

    For ozone, an area may be considered to be attaining the 8-hour 
ozone NAAQS if there are no violations of the NAAQS, as determined in 
accordance with 40 CFR 50.10 and appendix I, based on the most recent 
three complete, consecutive calendar years of quality-assured air 
quality monitoring data at all ozone monitoring sites in the area and 
in its nearby downwind environs. To attain this standard, the average 
of the annual fourth-high daily maximum 8-hour average ozone 
concentrations measured and recorded at each monitor (the monitoring 
site's ozone design value) within the area and in its nearby downwind 
environs over the three-year period must not exceed the ozone standard. 
Based on an ozone data rounding convention described in 40 CFR part 50, 
appendix I, the 8-hour standard is attained if the area's ozone design 
value \3\ is 0.084 ppm (84 ppb) or lower. The data must be collected 
and quality-assured in accordance with 40 CFR part 58, and must be 
recorded in EPA's Air Quality System (AQS). The ozone monitors 
generally should have remained at the same locations for the duration 
of the monitoring period required to demonstrate attainment (for three 
years or more). The data supporting attainment of the standard

[[Page 19427]]

must be complete in accordance with 40 CFR part 50, appendix I.
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    \3\ The worst-case monitoring site-specific ozone design value 
in the area or in its affected downwind environs.
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    As part of the May 30, 2006 ozone redesignation request, IDEM 
submitted ozone monitoring data indicating the highest four daily 
maximum 8-hour ozone concentrations for each monitoring site in LaPorte 
County (the Michigan City and LaPorte ozone monitoring sites) for each 
year during the 2003-2005 period. These worst-case ozone concentrations 
are part of the quality-assured ozone data that have been entered into 
EPA's AQS. The annual fourth-high 8-hour daily maximum ozone 
concentrations, along with their three-year averages are summarized in 
Table 1.

                                Table 1.--Fourth-High 8-Hour Ozone Concentrations
                                          [In parts per billion (ppb)]
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                  County                           Monitoring site          2003      2004      2005     Average
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LaPorte...................................  Michigan City...............        82        70        84        79
LaPorte...................................  LaPorte.....................        84        68        89        80
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    These data show that the average fourth-high daily maximum 8-hour 
ozone concentrations for the monitoring sites in LaPorte County are all 
below the 85 ppb ozone standard violation cut-off. The data support the 
conclusion that LaPorte County did not experience a monitored violation 
of the 8-hour ozone standard during the 2003-2005 period.
    We also note that the 8-hour ozone NAAQS continued to be attained 
in LaPorte County through 2006. Data in the AQS show that, in 2006, the 
Michigan City monitor recorded a daily maximum fourth-high 8-hour ozone 
concentration of 75 ppb, and the LaPorte monitor recorded a daily 
maximum fourth-high 8-hour ozone concentration of 69 ppb.
    The State has committed to continue ozone monitoring in this area 
during the maintenance period, through 2020. IDEM also commits to 
consult with the EPA prior to making any changes in the existing 
monitoring network.
    During our review of the LaPorte ozone monitoring data contained in 
EPA's AQS, we noted that the annual percentages of reported daily 
maximum 8-hour ozone concentrations for the LaPorte monitoring site 
during the 2003-2005 ozone seasons (April through September in Indiana) 
were the following: 90 percent in 2003; 65 percent in 2004; and 74 
percent in 2005. This is not consistent with the three-year 90 percent 
annual average completeness requirement and the 75 percent annual 
minimum completeness requirement of 40 CFR part 50, appendix I. It 
should be noted, however, that appendix I provides for the 
consideration of surrounding ozone monitoring data to support 
alternative conclusions regarding data completeness. More specifically, 
it provides that, when computing whether the minimum data completeness 
requirements have been met, meteorological and ambient data may be 
sufficient to demonstrate that meteorological conditions on missing 
data days were not conducive to peak ozone concentrations above the 
level of the standard. Missing days assumed to have peak ozone 
concentrations less than the standard are counted for purposes of 
meeting the data completeness requirements as having valid maximum 8-
hour ozone concentrations.
    On August 24, 2006, IDEM submitted supplemental data and 
documentation to support the conclusion that all days in 2003, 2004, 
and 2005 with missing ozone data were days in which the ozone standard 
was likely to not have been exceeded at the LaPorte site. We believe 
that IDEM's analysis supports an assumption of data completeness for 
the LaPorte monitoring site and, therefore, agree that the LaPorte 
ozone data for 2003-2005 meet the data completeness requirements. IDEM 
has appropriately flagged the ozone data in the AQS for this monitoring 
site supporting this conclusion.
    The data submitted by the State demonstrate that LaPorte County has 
attained the 8-hour ozone NAAQS. Therefore, we propose to find that 
LaPorte County has attained the 8-hour ozone standard.

2. LaPorte County Has Met All Applicable Requirements Under Section 110 
and Part D of the CAA and the Area Has a Fully Approved SIP Under 
Section 110(k) of the CAA

    EPA has determined that Indiana has met all currently applicable 
SIP requirements for LaPorte County under section 110 of the CAA 
(general SIP requirements). EPA has also determined that the Indiana 
SIP meets currently applicable SIP requirements under part D of title I 
of the CAA (requirements specific to basic and subpart 2 ozone 
nonattainment areas). See section 107(d)(3)(E)(v) of the CAA. In 
addition, EPA has determined that the Indiana SIP is fully approved 
with respect to all applicable requirements. See section 
107(d)(3)(E)(ii) of the CAA. In making these determinations, EPA 
ascertained what requirements are applicable to the area, and 
determined that the applicable portions of the SIP meeting these 
requirements are fully approved under section 110(k) of the CAA. We 
note that SIPs must be fully approved only with respect to currently 
applicable requirements of the CAA, those CAA requirements applicable 
to LaPorte County at the time the State submitted the final, complete 
ozone redesignation request for this area.
a. LaPorte County Has Met All Applicable Requirements Under Section 110 
and Part D of the CAA
    The September 4, 1992 Calcagni memorandum describes EPA's 
interpretation of section 107(D)(3)(E) of the CAA. Under this 
interpretation, to qualify for redesignation of an area to attainment, 
the State and the area must meet the relevant CAA requirements that 
come due prior to the State's submittal of a complete redesignation 
request for the area. See also a September 17, 1993 memorandum from 
Michael Shapiro, Acting Assistant Administrator for Air and Radiation, 
``State Implementation Plan (SIP) Requirements for Areas Submitting 
Requests for Redesignation to Attainment of the Ozone and Carbon 
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or 
After November 15, 1992'' and 66 FR 12459, 12465-12466 (March 7, 1995) 
(redesignation of Detroit-Ann Arbor, Michigan to attainment of the 1-
hour ozone NAAQS). Applicable requirements of the CAA that come due 
subsequent to the State's submittal of a complete redesignation request 
remain applicable until a redesignation to attainment of the standard 
is approved, but are not required as a prerequisite to redesignation. 
See section 175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th 
Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation 
of the St. Louis/East St. Louis area to attainment of the 1-hour ozone 
NAAQS).

[[Page 19428]]

    General SIP requirements: Section 110(a) of title I of the CAA 
contains the general requirements for a SIP, which include: enforceable 
emission limitations and other control measures, means, or techniques; 
provisions for the establishment and operation of appropriate devices 
necessary to collect data on ambient air quality; and programs to 
enforce the emission limitations. SIP elements and requirements are 
specified in section 110(a)(2) of title I, part A of the CAA. These 
requirements and SIP elements include, but are not limited to, the 
following: (a) Submittal of a SIP that has been adopted by the State 
after reasonable public notice and a hearing; (b) provisions for 
establishment and operation of appropriate procedures needed to monitor 
ambient air quality; (c) implementation of a source permit program; (d) 
provisions for the implementation of new source part C requirements 
(Prevention of Significant Deterioration (PSD)) and new source part D 
requirements (New Source Review (NSR)); (e) criteria for stationary 
source emission control measures, monitoring, and reporting; (f) 
provisions for air quality modeling; and, (g) provisions for public and 
local agency participation.
    SIP requirements and elements are discussed in the following EPA 
documents: ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992; ``State Implementation Plan 
(SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,'' 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, October 28, 1992; and ``State Implementation Plan (SIP) 
Requirements for Areas Submitting Requests for Redesignation to 
Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air 
Quality Standards (NAAQS) on or After November 15, 1992,'' Memorandum 
from Michael H. Shapiro, Acting Assistant Administrator, September 17, 
1993. See also other guidance documents listed above.
    Section 110(a)(2)(D) of the CAA requires SIPs to contain certain 
measures to prevent sources in one state from significantly 
contributing to air quality problems in another state. To implement 
this provision, EPA required states to establish programs to address 
transport of air pollutants (NO<INF>X</INF> SIP call, Clean Air 
Interstate Rule (CAIR)). EPA has also found, generally, that states 
have not submitted SIPs under section 110(a)(1) of the CAA to meet the 
interstate transport requirements of section 110(a)(2)(D)(i) of the CAA 
(70 FR 21147, April 25, 2005). However, the section 110(a)(2)(D) 
requirements for a state are not linked with a particular nonattainment 
area's classification. EPA believes that the requirements linked with a 
particular nonattainment area's classification are the relevant 
measures to evaluate in reviewing a redesignation request. The 
transport SIP submittal requirements, where applicable, continue to 
apply to a state regardless of the designation of any one particular 
area in the state.
    We believe that these requirements should not be construed to be 
applicable requirements for purposes of redesignation. Further, we 
believe that the other section 110 elements described above that are 
not connected with nonattainment plan submissions and that are not 
linked with an area's attainment status are also not applicable 
requirements for purposes of redesignation. A state remains subject to 
these requirements after an area is redesignated to attainment. We 
conclude that only the section 110 and part D requirements which are 
linked with an area's designation and classification are the relevant 
measures in evaluating this aspect of a redesignation request. This 
approach is consistent with EPA's existing policy on applicability of 
conformity and oxygenated fuels requirements for redesignation 
purposes, as well as with section 184 ozone transport requirements. 
See: Reading, Pennsylvania proposed and final rulemakings (61 FR 53174-
53176, October 10, 1996 and 62 FR 24826, May 7, 1997); Cleveland-Akron-
Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, 
Florida final rulemaking (60 FR 62748, December 7, 1995). See also the 
discussion on this issue in the Cincinnati, Ohio ozone redesignation 
(65 FR 37890, June 19, 2000), and the Pittsburgh, Pennsylvania ozone 
redesignation (66 FR 50399, October 19, 2001). In addition, Indiana's 
response to the CAIR rule was due in September 2006. Because this 
deadline had not yet passed when the State submitted the final, 
complete redesignation request, the State's CAIR submittal is also not 
an applicable requirement for redesignation purposes.
    We believe that section 110 elements not linked to the area's 
nonattainment status are not applicable for purposes of redesignation. 
Nonetheless, we also note that EPA has previously approved provisions 
in the Indiana SIP addressing section 110 elements under the 1-hour 
ozone standard. We have analyzed the Indiana SIP as codified in 40 CFR 
52, subpart P, and have determined that it is consistent with the 
requirements of section 110(a)(2) of the CAA. The SIP, which has been 
adopted after reasonable public notice and hearing, contains 
enforceable emission limitations; requires monitoring, compiling, and 
analyzing ambient air quality data; requires preconstruction review of 
new major stationary sources and major modifications of existing 
sources; provides for adequate funding, staff, and associated resources 
necessary to implement its requirements; and, requires stationary 
source emissions monitoring and reporting, and otherwise satisfies the 
applicable requirements of section 110(a)(2).
    Part D SIP requirements: EPA has determined that the Indiana SIP 
meets applicable SIP requirements under part D of the CAA. Under part 
D, an area's classification (marginal, moderate, serious, severe, and 
extreme) indicates the requirements to which it will be subject. 
Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth 
the basic nonattainment area plan requirements applicable to all 
nonattainment areas. Subpart 2 of part D, found in section 182 of the 
CAA, establishes additional specific requirements depending on the 
area's nonattainment classification.
    Part D, subpart 1 requirements: For purposes of evaluating this 
redesignation request, the applicable subpart 1 part D requirements for 
all nonattainment areas are contained in sections 172(c)(1)-(9) and 
176. A thorough discussion of the requirements of section 172 can be 
found in the General Preamble for Implementation of Title I (57 FR 
13498). (See also 68 FR 4852-4853 in a St. Louis ozone redesignation 
notice of proposed rulemaking for a discussion of section 172 
requirements.)
    As noted in a previous section of this proposed rule, no 
requirements under part D of the CAA came due for LaPorte County prior 
to the State's May 30, 2006 submittal of a complete redesignation 
request. For example, the requirement for an ozone attainment 
demonstration, as contained in section 172(c)(1), was not yet 
applicable, nor were the requirements for Reasonably Available Control 
Measures (RACM) and Reasonably Available Control Technology (RACT) 
(section 172(c)(1)), Reasonable Further Progress (RFP) (section 
172(c)(2)), and attainment plan and RFP contingency measures (section 
172(c)(9)). All of these SIP elements were required for submittal after 
May 30, 2006. Therefore, none of the part D requirements are applicable 
to LaPorte County for purposes of redesignation.

[[Page 19429]]

    Section 176 conformity requirements: Section 176(c) of the CAA 
requires states to establish criteria and procedures to ensure that 
federally-supported or funded activities, including highway projects, 
conform to the air planning goals in the applicable SIP. The 
requirement to determine conformity applies to transportation plans, 
programs, and projects developed, funded, or approved under Title 23 
U.S.C. and the Federal Transit Act (transportation conformity) as well 
as to all other federally-supported or funded projects (general 
conformity). State conformity SIP revisions must be consistent with 
Federal conformity regulations that the CAA required the EPA to 
promulgate.
    In addition to the fact that part D requirements did not become due 
prior to Indiana's submission of the complete ozone redesignation 
request for LaPorte County, and, therefore, are not applicable for 
redesignation purposes, EPA similarly believes that it is reasonable to 
interpret the conformity requirements as not applying for purposes of 
evaluating the ozone redesignation request under section 107(d) of the 
CAA. In addition, please note that it is reasonable to interpret the 
conformity requirements as not applying for purposes of evaluating the 
ozone redesignation request under section 107(d) of the CAA because 
state conformity rules are still required after redesignation of an 
area to attainment of a NAAQS and Federal conformity rules apply where 
state rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th 
Cir. 2001). See also 60 FR 62748 (December 7, 1995) (Tampa, Florida).
    Part D, subpart 2 requirements: Similar to the subpart 1 
requirements, EPA believes that the subpart 2 requirements that apply 
to LaPorte County do not apply to a consideration of Indiana's ozone 
redesignation request because the State submitted a complete ozone 
redesignation request for LaPorte County before any of the applicable 
subpart 2 requirements became due.
    The May 10, 1995 Seitz memorandum (see ``Reasonable Further 
Progress, Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard,'' Memorandum from John S. Seitz, Director, Office of Air 
Quality Planning and Standards, May 10, 1995) states that certain SIP 
revisions need not be submitted for EPA to approve a redesignation 
request since the requirements would no longer be considered applicable 
requirements as long as the area continues to attain the standard. As 
set forth in this policy, EPA believes it is reasonable to interpret 
the provisions regarding RFP and attainment demonstrations, along with 
certain other related provisions, as not requiring further state 
submissions to achieve attainment if an area is in fact attaining the 
standard. In the May 10, 1995 memorandum, EPA articulated in detail its 
interpretation that certain requirements of subparts 1 and 2 are not 
applicable once an area has attained the standard, for as long as it 
continues to do so.
    The United States Court of Appeals for the Tenth Circuit has upheld 
this interpretation, Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996), 
as has the U.S. Court of Appeals for the Seventh Circuit. Sierra Club 
v. EPA, 375 F.3d 537 (7th Cir. 2004). In addition, EPA has explained in 
rulemaking actions on the 1-hour ozone standard its rationale for the 
reasonableness of this interpretation of the CAA. See: 67 FR 49600 
(July 31, 2002); 65 FR 37879 (June 19, 2000); 65 FR 3630, 3631-32 
(January 24, 2000) (Cincinnati-Hamilton, Ohio, Kentucky); 61 FR 20458 
(May 7, 1996) (Cleveland-Akron-Lorain, Ohio); 66 FR 53094 (October 19, 
2001) (Pittsburgh-Beaver Valley, Pennsylvania); 60 FR 37366 (July 20, 
1995); 61 FR 31832-33 (June 21, 1996) (Grand Rapids, Michigan); 60 FR 
36723 (July 18, 1995) (Salt Lake and Davis Counties, Utah); 68 FR 4847, 
4848, 4851, 4855 (January 30, 2003); 68 FR 25418 (May 12, 2003) (St. 
Louis, Missouri); and, 66 FR 27484, 27486 (May 17, 2001) (Louisville, 
Kentucky).
    EPA has also determined that areas being redesignated need not 
comply with the requirement that a New Source Review (NSR) program be 
approved prior to redesignation, provided that the area demonstrates 
maintenance of the standard without part D NSR, since Prevention of 
Significant Deterioration (PSD) requirements will apply after 
redesignation. A more detailed rationale for this view is described in 
a memorandum from Mary Nichols, Assistant Administrator for Air and 
Radiation, dated October 14, 1994, entitled, ``Part D New Source Review 
Requirements for Areas Requesting Redesignation to Attainment.'' 
Indiana has demonstrated that LaPorte County will be able to maintain 
the 8-hour ozone standard without part D NSR in effect, and, therefore, 
we conclude that the State need not have a fully approved part D NSR 
program prior to approval of the redesignation request. The State's PSD 
program will become effective in LaPorte County upon redesignation to 
attainment. See rulemakings for Detroit, Michigan (60 FR 12467-12468, 
March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, 
May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); 
Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).
    We conclude that the State and LaPorte County have satisfied all 
applicable requirements under section 110 and part D of the CAA to the 
extent that the requirements apply for the purposes of reviewing the 
State's ozone redesignation request.
b. LaPorte County Has a Fully Approved Applicable SIP Under Section 
110(k) of the CAA
    EPA has fully approved the Indiana SIP for LaPorte County under 
section 110(k) of the CAA for all applicable requirements. EPA may rely 
on prior SIP approvals in approving a redesignation request (See the 
September 4, 1992 John Calcagni memorandum, page 3, Southwestern 
Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th 
Cir. 1998), Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)), plus any 
additional measures it may approve in conjunction with a redesignation 
action. See 68 FR 25426 (May 12, 2003). Since the passage of the CAA of 
1970, Indiana has adopted and submitted, and EPA has fully approved, 
provisions addressing the various required SIP elements applicable to 
LaPorte County for purposes of redesignation. No LaPorte County SIP 
provisions are currently disapproved, conditionally approved, or 
partially approved. As indicated above, EPA believes that the section 
110 elements not connected with nonattainment plan submissions and not 
linked to the area's nonattainment status are not applicable 
requirements for purposes of review of the State's redesignation 
request. EPA has concluded that the section 110 SIP submission approved 
under the 1-hour ozone standard will be adequate for purposes of 
attaining and maintaining the 8-hour standard. EPA also believes that 
since the part D requirements did not become due prior to Indiana's 
submission of a final, complete redesignation request, they also are 
not applicable requirements for purposes of redesignation.

3. The Air Quality Improvement in LaPorte County Is Due To Permanent 
and Enforceable Reductions in Emissions From Implementation of the SIP 
and Applicable Federal Air Pollution Control Regulations and Other 
Permanent and Enforceable Emission Reductions

    EPA believes that the State of Indiana has demonstrated that the 
observed air

[[Page 19430]]

quality improvement in LaPorte County is due to permanent and 
enforceable emission reductions resulting from implementation of the 
SIP, Federal measures, and other State-adopted measures.
    The State has documented the changes in VOC and NO<INF>X</INF> 
emissions from anthropogenic (man-made or man-based) sources in LaPorte 
County between 1996 and 2004 and the changes in NO<INF>X</INF> 
emissions from Electric Generating Units (EGUs) in Northwest Indiana 
(Jasper, Lake, LaPorte, and Porter Counties) and statewide between 1999 
and 2005. LaPorte County was monitored in violation of the 8-hour ozone 
NAAQS during the period of 1996 through 1999 and monitored in 
attainment with the NAAQS during the period of 2003 through 2005. The 
VOC and NO<INF>X</INF> emissions for LaPorte County for various years 
during the period of 1996 through 2004 are given in Table 2.

               Table 2.--VOC and NOX Emissions Trends in LaPorte County for Anthropogenic Sources
                                         [Emissions in tons/summer day]
----------------------------------------------------------------------------------------------------------------
                          Pollutant                               1996         1999         2002         2004
----------------------------------------------------------------------------------------------------------------
VOC.........................................................         31.0         29.7         24.5         24.0
NOX.........................................................         83.7         45.4         71.6         44.4
----------------------------------------------------------------------------------------------------------------

    The NO<INF>X</INF> emissions trends for EGUs in Northwest Indiana 
and statewide for Table 3. The NO<INF>X</INF> emissions for LaPorte 
County and the EGU NO<INF>X</INF> emissions from Northwest Indiana and 
statewide have shown significant downward trends from 1996 and 1999, 8-
hour standard violation years, to 2004 and 2005, attainment years (and 
from 2002, a violation year, to 2004, an attainment year). IDEM notes 
that the NO<INF>X</INF> emissions in Northwest Indiana and statewide 
declined significantly as a result of the implementation of the Indiana 
NO<INF>X</INF> SIP (in response to EPA's NO<INF>X</INF> SIP call) and 
acid rain control regulations, both of which led to permanent, 
enforceable emission reductions.

         Table 3.--NOX Emission Trends for Electric Generating Units in Northwest and Indiana Statewide
                       [Emissions in thousands of tons per ozone season (April-September)]
----------------------------------------------------------------------------------------------------------------
                          Area                             1999    2000    2001    2002    2003    2004    2005
----------------------------------------------------------------------------------------------------------------
Northwest Indiana.......................................    31.8    25.0    27.4    22.7    18.0    11.8    10.6
Statewide...............................................   149.8   133.9   136.1   114.0    99.3    66.6    55.5
----------------------------------------------------------------------------------------------------------------

    As noted in Table 2, the total VOC emissions in LaPorte County also 
declined between 1996 and 2004. IDEM notes that this emissions decline 
has resulted despite an increase in point source VOC emissions in this 
County due to source growth. VOC emission control measures have been 
implemented in LaPorte County constraining the impacts of new source 
growth in this County. The State's VOC rules were adopted in the mid-
1990s, and include the following VOC control rules: 326 Indiana 
Administrative Code (IAC) 8-1-6 (Best Available Control Technology 
(BACT) for non-specific sources); 326 IAC 8-2 (surface coating emission 
limitations); 326 IAC (organic solvent degreasing operations); 326 IAC 
8-4 (petroleum sources, including storage, transport, and marketing 
sources and petroleum refining); 326 IAC 8-5 (miscellaneous sources); 
and 326 IAC 8-6 (organic solvent emission limitations). These VOC 
control rules have been implemented statewide. Compliance with these 
rules has resulted in a decrease in point source VOC emissions in 
LaPorte County, offsetting some source growth, as well as decreasing 
VOC emissions in the remainder of Northwest Indiana and statewide. The 
VOC emission reductions resulting from the implementation of the VOC 
emission control rules are permanent and enforceable.
    Since LaPorte County was not previously designated as a 1-hour 
ozone nonattainment area, no ozone precursor emission controls were 
specifically targeted at this County. Therefore, statewide and Federal 
emission control requirements have provided the majority of the VOC and 
NO<INF>X</INF> emission reductions in LaPorte County and in the 
surrounding area.
    Besides the statewide VOC RACT rules and NO<INF>X</INF> emission 
control requirements, other Federal emission reduction requirements 
have resulted in decreased ozone precursor emissions in the Northwest 
Indiana area and/or will produce future emission reductions that will 
support maintenance of the ozone standard in LaPorte County (see a more 
detailed discussion on maintenance of the 8-hour ozone standard in 
LaPorte County below). These emission reduction requirements include 
the following:
    Tier 2 Emission Standards for Vehicles and Gasoline Sulfur 
Standards. These emission control requirements result in lower 
emissions from new cars and light duty trucks, including sport utility 
vehicles. The Federal rules are being phased in between 2004 and 2009. 
The EPA has estimated that, by the end of the phase-in period, the 
following vehicle NO<INF>X</INF> emission reductions will occur nation-
wide: passenger cars (light duty vehicles) (77 percent); light duty 
trucks, minivans, and sports utility vehicles (86 percent; and larger 
sports utility vehicles, vans, and heavier trucks (69 to 95 percent). 
VOC emission reductions are also expected to range from 12 to 18 
percent, depending on vehicle class, over the same period. Although 
some of these emission reductions have already occurred by the 2004 
attainment year, most of these emission reductions will occur during 
the maintenance period for LaPorte County.
    Heavy-Duty Diesel Engines. In July 2000, EPA issued a final rule to 
control the emissions from highway heavy duty diesel engines, including 
low-sulfur diesel fuel standards. These emission reductions are being 
phased in between 2004 and 2007. This rule is expected to result in a 
40 percent decrease in NO<INF>X</INF> emissions from heavy duty diesel 
vehicles.
    Non-Road Diesel Rule. Issued in May 2004, this rule generally 
applies to new stationary diesel engines used in certain industries, 
including construction, agriculture, and mining. In addition to

[[Page 19431]]

affecting engine design, this rule includes requirements for cleaner 
fuels. It is expected to reduce NO<INF>X</INF> emissions from these 
engines by up to 90 percent, and to significantly reduce particulate 
matter and sulfur emissions from these engines in addition to the 
NO<INF>X</INF> emission reduction. This rule did not affect 2004 
emissions from these sources, but will limit emissions from new engines 
beginning in 2008.
    Indiana commits to maintain all existing emission control measures 
that affect LaPorte County after this area is redesignated to 
attainment of the 8-hour ozone NAAQS. All changes in existing rules 
affecting LaPorte County and new rules subsequently needed to provide 
for the maintenance of the 8-hour ozone NAAQS in LaPorte County will be 
submitted to the EPA for approval as SIP revisions.

4. LaPorte County Has a Fully Approvable Ozone Maintenance Plan 
Pursuant to Section 175A of the CAA

    In conjunction with its request to redesignate LaPorte County to 
attainment of the ozone NAAQS, Indiana submitted a SIP revision request 
to provide for maintenance of the 8-hour ozone NAAQS in LaPorte County 
for at least 10 years after the redesignation of this area to 
attainment of the 8-hour ozone NAAQS.
a. What Is Required in an Ozone Maintenance Plan?
    Section 175A of the CAA sets forth the required elements of air 
quality maintenance plans for areas seeking redesignation from 
nonattainment to attainment of a NAAQS. Under section 175A, a 
maintenance plan must demonstrate continued attainment of the 
applicable NAAQS for at least 10 years after the Administrator approves 
the redesignation to attainment. Eight years after the redesignation, 
the State must submit a revised maintenance plan which demonstrates 
maintenance of the standard for 10 years following the initial 10-year 
maintenance period. To address the possibility of future NAAQS 
violations, the maintenance plan must contain such contingency 
measures, with a schedule for implementation, as EPA deems necessary, 
to assure prompt correction of any future NAAQS violations. The 
September 4, 1992 John Calcagni memorandum provides additional guidance 
on the content of maintenance plans. An ozone maintenance plan should, 
at minimum, address the following items: (1) The attainment VOC and 
NO<INF>X</INF> emissions inventories; (2) a maintenance demonstration 
showing maintenance for the 10 years of the maintenance period; (3) a 
commitment to maintain the existing monitoring network; (4) factors and 
procedures to be used for verification of continued attainment; and, 
(5) a contingency plan to prevent and/or correct a future violation of 
the NAAQS.
b. What Are the Attainment Emission Inventories for LaPorte County?
    IDEM prepared comprehensive VOC and NO<INF>X</INF> emission 
inventories for LaPorte County, including point (significant stationary 
sources), area (smaller and widely-distributed stationary sources), 
mobile on-road, and mobile non-road sources for 2004 (the base year/
attainment year). To develop the attainment year emission inventories, 
IDEM used the following approaches and sources of data:
    Area Sources--Area source VOC and NO<INF>X</INF> emissions were 
projected from Indiana's 2002 periodic emissions inventory, which was 
previously submitted to the EPA.
    Mobile On-Road Sources--Mobile source emissions were calculated 
using the MOBILE6 emission factor model and traffic data (vehicle miles 
traveled, vehicle speeds, and vehicle type and age distributions) 
extracted from the region's travel-demand model. IDEM has provided 
detailed data summaries to document the calculation of mobile on-road 
VOC and NO<INF>X</INF> emissions for 2004, as well as for the 
projection years of 2010 and 2020 (further discussed below).
    Point Source Emissions--2004 point source emissions were compiled 
using IDEM's 2004 annual emissions statement database and the 2005 EPA 
Air Markets acid rain emissions inventory database.
    Mobile Non-Road Emissions--Non-road mobile source emissions were 
estimated by the EPA and documented in the 2002 National Emissions 
Inventory (NEI). IDEM used these emissions estimates along with growth 
factors to grow the non-road mobile source emissions to 2004. To 
address concerns about the accuracy of some of the emissions for 
various source categories in EPA's non-road emissions model, the Lake 
Michigan Air Directors Consortium (LADCO) contracted with several 
companies to review the base data used by the EPA and to make 
recommendations for corrections to the model. Emissions were estimated 
for commercial marine vessels and railroads. Recreational motorboat 
population and spatial surrogates (used to assign emissions to each 
county) were updated. The populations for the construction equipment 
category were reviewed and updated based on surveys completed in the 
Midwest, and the temporal allocation for agricultural sources was also 
updated. Based on these and other updates, the EPA provided a revised 
non-road estimation model, which was used for the 2004 projected non-
road mobile source emissions.
    The 2004 attainment year VOC and NO<INF>X</INF> emissions for 
LaPorte County are summarized along with the 2010 and 2020 projected 
emissions for this County in Tables 4 and 5 below. They confirm that 
the State has acceptably derived and documented the attainment year VOC 
and NO<INF>X</INF> emissions for LaPorte County.
c. Demonstration of Maintenance
    As part of the May 30, 2006 redesignation request submittal, IDEM 
included a requested revision to the SIP to incorporate a 10-year ozone 
maintenance plan as required under section 175A of the CAA. The 
maintenance plan contains a maintenance demonstration. This 
demonstration shows maintenance of the 8-hour ozone NAAQS by 
documenting current and projected VOC and NO<INF>X</INF> emissions and 
showing that future emissions of VOC and NO<INF>X</INF> remain at or 
below the attainment year emission levels.\4\ Note that a maintenance 
demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d 
426 (6th Cir. 2001), Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). 
See also 66 FR 53094, 53099-53100 (October 19, 2001) and 68 FR 25430-
25432 (May 12, 2003).
---------------------------------------------------------------------------

    \4\ The attainment year can be any of the three consecutive 
years in which the area has clean (below violation level) air 
quality data (2003, 2004, or 2005 for LaPorte County).
---------------------------------------------------------------------------

    Table 4 specifies the VOC emissions in LaPorte County for 2004, 
2010, and 2020. IDEM chose 2020 as a projection year to meet the 10-
year maintenance projection requirement, allowing several years for the 
State to complete its adoption of the ozone redesignation request and 
ozone maintenance plan and for the EPA to approve the redesignation 
request and maintenance plan. IDEM also chose 2010 as an interim year 
to demonstrate that VOC and NO<INF>X</INF> emissions will remain below 
the attainment levels throughout the 10-year maintenance period.
    Table 5, similar to Table 4, specifies the NO<INF>X</INF> emissions 
in LaPorte County for 2004, 2010, and 2020. Together, Tables 4 and 5 
demonstrate that LaPorte County should remain in attainment of the 8-
hour ozone NAAQS between 2004 and 2020, for more than 10 years after 
EPA is expected to approve the

[[Page 19432]]

redesignation of LaPorte County to attainment of the 8-hour ozone 
NAAQS.

 Table 4.--Attainment Year (2004) and Projected VOC Emissions in LaPorte
                                 County
                          [Tons per summer day]
------------------------------------------------------------------------
                                                    Year
          Source sector           --------------------------------------
                                       2004         2010         2020
------------------------------------------------------------------------
Point............................         4.36         3.61         3.53
Area.............................         7.17         7.51         8.14
On-Road Mobile...................         7.36         4.75         3.09
Off-Road Mobile..................         5.13         3.93         3.23
                                  --------------------------------------
    Total........................        24.02        19.80        17.99
------------------------------------------------------------------------


 Table 5.--Attainment Year and Projected NOX Emissions in LaPorte County
                          [Tons per summer day]
------------------------------------------------------------------------
                                                    Year
          Source sector           --------------------------------------
                                       2004         2010         2020
------------------------------------------------------------------------
Point............................         4.80         4.15         3.63
Area.............................         1.13         1.20         1.26
On-Road Mobile...................        28.52        17.15         5.91
Off-road Mobile..................         9.96         7.57         6.41
                                  --------------------------------------
    Total........................        44.41        30.07        17.21
------------------------------------------------------------------------

    IDEM also notes that the State's EGU NO<INF>X</INF> emission 
control rules stemming from EPA's NO<INF>X</INF> SIP call, implemented 
beginning in 2004, and CAIR will further lower NO<INF>X</INF> emissions 
in upwind areas, resulting in decreased ozone and ozone precursor 
transport into LaPorte County (the State did not project the emission 
decreases resulting from CAIR and did not document future 
NO<INF>X</INF> emissions in upwind Counties). This will also support 
maintenance of the ozone standard in LaPorte County.
    The emission projections for LaPorte County coupled with the 
expected impacts of the State's EGU NO<INF>X</INF> rules and CAIR lead 
to the conclusion that LaPorte County should maintain the 8-hour ozone 
standard throughout the 10-year maintenance period. The decrease in 
local VOC and local and regional NO<INF>X</INF> emissions indicate that 
peak ozone levels in LaPorte County may actually further decline during 
the 10-year ozone maintenance period.
    IDEM has documented some of the procedures used to project 
emissions. On-road mobile sources were projected using the MOBILE6 
emission factor model and projected traffic data obtained from the 
Northwest Indiana Regional Planning Commission (NIRPC), who maintains a 
travel demand forecast model that is capable of projecting changes in 
total daily Vehicle Miles Traveled (VMT). Emissions for the other major 
source sectors were determined using projected source activity/growth 
data provided by LADCO, as well as major source emissions data obtained 
periodically for all major sources statewide. IDEM's data demonstrate 
that emissions projections for LaPorte County are consistent with the 
planning analyses being conducted to attain the 8-hour ozone and fine 
particle (PM2.5) standards throughout Indiana and throughout the Lake 
Michigan area.
    Based on the comparison of the projected emissions and the 
attainment year emissions, we conclude that IDEM has successfully 
demonstrated that the 8-hour ozone standard should be maintained in 
LaPorte County. We believe that this is especially likely given the 
expected impacts of the NO<INF>X</INF> SIP call and CAIR. As noted by 
IDEM, this conclusion is further supported by the fact that other 
states in the eastern portion of the United States are expected to 
further reduce regional NO<INF>X</INF> emissions through implementation 
of their own NO<INF>X</INF> emission control rules for EGUs and other 
NO<INF>X</INF> sources and through implementation of CAIR, reducing 
ozone and NO<INF>X</INF> transport into LaPorte County.
d. Monitoring Network
    IDEM commits to continue operating and maintaining an approved 
ozone monitoring network in LaPorte County in accordance with 40 CFR 
part 58 through the 10-year maintenance period. This will allow the 
confirmation of the maintenance of the 8-hour ozone standard in this 
area and the triggering of contingency measures if needed.
e. Verification of Continued Attainment
    Continued attainment of the 8-hour ozone NAAQS in LaPorte County 
depends on the State's efforts toward tracking applicable indicators 
during the maintenance period. The State's plan for verifying continued 
attainment of the 8-hour ozone standard in LaPorte County consists, in 
part, of a plan to continue ambient ozone monitoring in accordance with 
the requirements of 40 CFR part 58. In addition, IDEM will periodically 
revise and review the VOC and NO<INF>X</INF> emissions inventories for 
LaPorte County to assure that emissions growth is not threatening the 
continued attainment of the 8-hour ozone standard in this area. Revised 
emission inventories for this area will be prepared for 2005, 2008, and 
2011 as necessary to comply with the emission inventory reporting 
requirements established in the CAA. The revised emissions will be 
compared with the 2004 attainment emissions and the 2020 projected 
maintenance year emissions to assure continued maintenance of the ozone 
standard.
f. Contingency Plan
    The contingency plan provisions of the CAA are designed to result 
in prompt correction or prevention of violations of the NAAQS that 
might occur after redesignation of an area to

[[Page 19433]]

attainment of the NAAQS. Section 175A of the CAA requires that a 
maintenance plan include such contingency measures as EPA deems 
necessary to assure that the State will promptly correct a violation of 
the NAAQS that might occur after redesignation. The maintenance plan 
must identify the contingency measures to be considered for possible 
adoption, a schedule and procedure for adoption and implementation of 
the selected contingency measures, and a time limit for action by the 
State. The State should also identify specific indicators to be used to 
determine when the contingency measures need to be adopted and 
implemented. The maintenance plan must include a requirement that the 
State will implement all measures with respect to control of the 
pollutant(s) that were controlled in the SIP before the redesignation 
of the area to attainment. See section 175A(d) of the CAA.
    As required by section 175A of the CAA, Indiana has adopted a 
contingency plan to address a possible future ozone air quality 
problem. The contingency plan has two levels of actions/responses 
depending on whether a violation of the 8-hour ozone standard is only 
threatened (Warning Level Response) or has actually occurred (Action 
Level Response).
    A Warning Level Response will be prompted whenever an annual (1-
year) fourth-high monitored daily peak 8-hour ozone concentration of 89 
ppb (or greater) occurs at any monitor in LaPorte County, or a 2-year 
averaged annual fourth-high daily peak 8-hour ozone concentration of 85 
ppb or greater occurs at any monitor in LaPorte County. A Warning Level 
Response will consist of a study to determine whether the monitored 
ozone level indicates a trend toward higher ozone levels or whether 
emissions are increasing, threatening a future violation of the ozone 
NAAQS. The study will evaluate whether the trend, if any, is likely to 
continue, and, if so, emission control measures necessary to reverse 
the trend will be adopted, taking into consideration the ease and 
timing of implementation, as well as economic and social 
considerations. Implementation of necessary controls will take place as 
expeditiously as possible, but in no event later than 12 months from 
the conclusion of the most recent ozone season. If new emission 
controls are needed to reverse the adverse ozone trend, the procedures 
for emission control selection under the Action Level Response will be 
followed.
    An Action Level Response will be triggered when a violation of the 
8-hour ozone standard is monitored at any of the monitors in LaPorte 
County (when a 3-year average annual fourth-high monitored daily peak 
8-hour ozone concentration of 85 ppb or higher is recorded at any 
monitor in LaPorte County). In this situation, IDEM will determine the 
additional emission control measures needed to assure future attainment 
of the 8-hour ozone NAAQS. IDEM will focus on emission control measures 
that can be implemented within 18 months from the close of the ozone 
season in which the ozone standard violation is monitored.
    Adoption of any additional emission control measures prompted by 
either of the two response levels will be subject to the necessary 
administrative and legal processes dictated by State law. This process 
will include publication of public notices, providing the opportunity 
for a public hearing, and other measures required by Indiana law for 
rulemaking by State environmental boards. If a new emission control 
measure is already promulgated and scheduled for implementation at the 
Federal or State level, and that emission control measure is determined 
to be sufficient to address the air quality problem or adverse trend, 
additional local emission control measures may be determined to be 
unnecessary. IDEM will submit to the EPA an analysis to demonstrate 
that the proposed emission control measures or existing emission 
control measures are adequate to provide for future attainment of the 
8-hour ozone NAAQS in LaPorte County.
    Contingency measures contained in the maintenance plan are those 
emission controls or other measures that the State may choose to adopt 
and implement to correct existing or possible air quality problems in 
LaPorte County. These include, but are not limited to, the following:
    i. Lower Reid vapor pressure gasoline requirements;
    ii. Broader geographic applicability of existing emission control 
measures;
    iii. Tightened RACT requirements on existing sources covered by EPA 
Control Technique Guidelines (CTGs) issued in response to the 1999 CAA 
amendments;
    iv. Application of RACT to smaller existing sources;
    v. Vehicle Inspection and Maintenance (I/M);
    vi. One or more Transportation Control Measure (TCM) sufficient to 
achieve at least a 0.5 percent reduction in actual area-wide VOC 
emissions, to be selected from the following:
    A. Trip reduction programs, including, but not limited to, 
employer-based transportation management plans, area-wide rideshare 
programs, work schedule programs, and telecommuting;
    B. Transit improvement;
    C. Traffic flow improvements; and,
    D. Other new or innovative transportation measures not yet in 
widespread use that affect State and local governments as deemed 
appropriate;
    vii. Alternative fuel and diesel retrofit programs for fleet 
vehicle operations;
    viii. Controls on consumer products consistent with those adopted 
elsewhere in the United States;
    ix. VOC or NO<INF>X</INF> emission offsets for new or modified 
major sources;
    x. VOC or NO<INF>X</INF> emission offsets for new or modified minor 
sources;
    xi. Increased ratio of emission offset required for new sources; 
and,
    xii. VOC or NO<INF>X</INF> emission controls on new minor sources 
(with VOC or NO<INF>X</INF> emissions less than 100 tons per year).
g. Provisions for a Future Update of the Ozone Maintenance Plan
    As required by section 175A(b) of the CAA, the State commits to 
submit to the EPA an update of the ozone maintenance plan eight years 
after redesignation of LaPorte County to attainment of the 8-hour ozone 
NAAQS. The updated maintenance plan will provide for maintenance of the 
8-hour ozone standard in LaPorte County for an additional 10 years 
beyond the period covered by the initial ozone maintenance plan.

V. Has Indiana Adopted Acceptable Motor Vehicle Emissions Budgets for 
the End of the 10-Year Maintenance Plan Which Can Be Used To Support 
Conformity Determinations?

A. How Are the Motor Vehicle Emission Budgets Developed and What Are 
the Motor Vehicle Emission Budgets for LaPorte County?

    Under the CAA, states are required to submit, at various times, SIP 
revisions and ozone maintenance plans for applicable areas (for ozone 
nonattainment areas and for areas seeking redesignations to attainment 
of the ozone standard or revising existing ozone maintenance plans). 
These emission control SIP revisions (e.g., reasonable further progress 
and attainment demonstration SIP revisions), including ozone 
maintenance plans, must create MVEBs based on on-road mobile source 
emissions allocated to highway and transit vehicle use that, together 
with emissions from other sources in the area, will provide for 
attainment or maintenance of the ozone NAAQS.
    Under 40 CFR part 93, MVEBs for an area seeking a redesignation to

[[Page 19434]]

attainment of the NAAQS are established for the last year of the 
maintenance plan. The MVEBs serve as ceilings on emissions from an 
area's planned transportation system. The MVEB concept is further 
explained in the preamble to the November 24, 1993 transportation 
conformity rule (58 FR 62188). The preamble also describes how to 
establish the MVEBs in the SIP and how to revise the MVEBs if needed.
    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the SIP that addresses emissions from cars 
and trucks. Conformity to the SIP means that transportation activities 
will not cause new air quality standard violations, or delay timely 
attainment of the NAAQS. If a transportation plan does not conform, 
most new transportation projects that would expand the capacity of 
roadways cannot go forward. Regulations at 40 CFR part 93 set forth 
EPA's policy, criteria, and procedures for demonstrating and assuring 
conformity of transportation activities to a SIP.
    When reviewing SIP revisions containing MVEBs, including attainment 
strategies, rate-of-progress plans, and maintenance plans, EPA must 
affirmatively find that the MVEBs are ``adequate'' for use in 
determining transportation conformity. Once EPA affirmatively finds the 
submitted MVEBs to be adequate for transportation conformity purposes, 
the MVEBs are used by state and Federal agencies in determining whether 
proposed transportation projects conform to the SIPs as required by 
section 176(c) of the CAA. EPA's substantive criteria for determining 
the adequacy of MVEBs are specified in 40 CFR 93.118(e)(4).
    EPA's process for determining adequacy of MVEBs consists of three 
basic steps: (1) Providing public notification of a SIP submission; (2) 
providing the public the opportunity to comment on the MVEBs during a 
public comment period; and, (3) making a finding of adequacy. The 
process of determining the adequacy of submitted SIP MVEBs was 
initially outlined in EPA's May 14, 1999 guidance, ``Conformity 
Guidance on Implementation of March 2, 1999, Conformity Court 
Decision.'' This guidance was finalized in the Transportation 
Conformity Rule Amendments for the ``New 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards and Miscellaneous Revisions for 
Existing Areas: Transportation Conformity Rule Amendments--Response to 
Court Decision and Additional Rule Change'' published on July 1, 2004 
(69 FR 40004). EPA follows this guidance and rulemaking in making its 
adequacy determinations.
    The Transportation Conformity Rule, in 40 CFR 93.118(f), provides 
for MVEB adequacy findings through two mechanisms. First, section 
93.118(f)(1) provides for posting a notice to the EPA conformity Web 
site at: http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm 
and providing a 30-day public comment period. Second, a mechanism is 
described in 40 CFR 93.118(f)(2) which provides that EPA can review the 
adequacy of an implementation plan MVEB simultaneously with its review 
of the implementation plan itself.
    The LaPorte County 10-year maintenance plan contains VOC and 
NO<INF>X</INF> MVEBs for 2020. EPA has reviewed the submittal and the 
proposed VOC and NO<INF>X</INF> MVEBs for LaPorte County and finds that 
the MVEBs meet the adequacy criteria in the Transportation Conformity 
Rule. Any and all comments on the approvability of the MVEBs should be 
submitted during the comment period stated in the DATES section of this 
notice.
    EPA, through this rulemaking, is proposing to approve the MVEBs for 
use to determine transportation conformity in LaPorte County because 
EPA has determined that the budgets are consistent with the control 
measures in the SIP and that LaPorte County can maintain attainment of 
the 8-hour ozone NAAQS for the relevant required 10-year period with 
mobile source emissions at the levels of the MVEBs. IDEM has determined 
the 2020 MVEBs for LaPorte County to be 3.40 tons per day for VOC and 
6.50 tons per day for NO<INF>X</INF>. It should be noted that these 
MVEBs exceed the on-road mobile source VOC and NO<INF>X</INF> emissions 
projected by IDEM for 2020, as summarized in Tables 4 and 5 above 
(``On-Road Mobile'' source sector). Through discussions with all 
organizations involved in transportation planning for LaPorte County, 
IDEM decided to include safety margins of 0.31 tons per day for VOC and 
0.59 tons per day for NO<INF>X</INF> in the MVEBs to provide for mobile 
source growth not anticipated in the projected 2020 emissions. Indiana 
has demonstrated that LaPorte County can maintain the 8-hour ozone 
NAAQS with mobile source emissions of 3.40 tons per day of VOC and 6.50 
tons per day of NO<INF>X</INF> in 2020 since total source emissions 
with the increased mobile source emissions will remain under the 
attainment year levels.

B. What Is a Safety Margin?

    A ``safety margin'' is the difference between the attainment level 
of emissions (from all sources) and the projected level of emissions 
(from all sources) in the maintenance plan. As noted in Tables 4 and 5, 
LaPorte County emissions are projected to have safety margins of 7.03 
tons per day for VOC and 37.20 tons per day for NO<INF>X</INF> in 2020, 
the difference between the 2004, attainment year, and 2020 VOC and 
NO<INF>X</INF> emissions for all sources in LaPorte County.
    The MVEBs requested by IDEM contain mobile source safety margins 
(selected by the State) significantly smaller than the safety margins 
reflected in the total emissions for LaPorte County. The State is not 
requesting allocation of the entire available safety margins actually 
reflected in the demonstration of maintenance (in Tables 4 and 5). 
Therefore, even though the State is requesting MVEBs that exceed the 
on-road mobile source emissions for 2020 contained in the demonstration 
of maintenance, the increase in on-road mobile source emissions that 
can be considered for transportation conformity purposes is well within 
the safety margins of the ozone maintenance demonstration.

C. Are the MVEBs Approvable?

    The VOC and NO<INF>X</INF> MVEBs for LaPorte County are approvable 
because they maintain the total emissions for LaPorte County at or 
below the attainment year emission inventory levels, as required by the 
transportation conformity regulations.

VI. What Is the Effect of EPA's Proposed Action?

    Approval of the redesignation request would change the official 
designation of LaPorte County for the 8-hour ozone NAAQS, found at 40 
CFR part 81, from nonattainment to attainment. It would also 
incorporate into the Indiana SIP a plan for maintaining the ozone NAAQS 
through 2020. The maintenance plan includes contingency measures to 
remedy possible future violations of the 8-hour ozone NAAQS, and 
establishes MVEBs of 3.40 tons per day for VOC and 6.50 tons per day 
for NO<INF>X</INF>.

VII. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, September 30, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review

[[Page 19435]]

by the Office of Management and Budget.

Paperwork Reduction Act

    This proposed rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

Regulatory Flexibility Act

    This proposed action merely proposes to approve state law as 
meeting Federal requirements and imposes no additional requirements 
beyond those imposed by state law. Accordingly, the Administrator 
certifies that this proposed rule will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this rule proposes to approve pre-existing requirements 
under state law and does not impose any additional enforceable duty 
beyond that required by state law, it does not contain any unfunded 
mandate or significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely proposes to approve a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 13045: Protection of Children From Environmental Health 
and Safety Risks

    This proposed rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant regulatory action,'' this 
action is also not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001).

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impractical. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. Absent a 
prior existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a SIP submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a program submission that otherwise satisfies the provisions of the 
Clean Air Act. Therefore, the requirements of section 12(d) of the 
NTTAA do not apply.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.

40 CFR Part 81

    Air pollution control, Environmental protection, National parks, 
Wilderness areas.

    Dated: April 6, 2007.
Walter W. Kovalick,
Acting Regional Administrator, Region 5.
[FR Doc. E7-7348 Filed 4-17-07; 8:45 am]
BILLING CODE 6560-50-P


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